Burkham v. Beaver

• Decision Date: 10 December 1861
• Citation: 17 Ind. 367
• Parties: Burkham v. Beaver
• Court: Indiana Supreme Court

17 Ind. 367

Burkham v. Beaver

Supreme Court of Indiana

December 10, 1861

APPEAL from the Rush Common Pleas.

The judgment is affirmed, with 3 per cent. damages and costs.

Clark and Hackleman, for the appellant.

L. & W. O. Sexton, for the appellee.

OPINION

Per Curiam.

One Hurst mortgaged a tract of land to Beaver. Afterward, the equity of redemption was conveyed to Burkham, "subject to the mortgage."

Beaver now files a complaint to foreclose against Burkham. Shaw v. Hoadley, 8 Blackf. 165, is in point, that Hurst was not a necessary party. There was a credit on the note secured by the mortgage, of the amount of another note given toward payment; but that note had not been paid, had not operated as a payment on the mortgage, and was not deducted in rendering the decree. This was right. There is nothing to show that Burkham was misled, but rather the contrary. The order of sale is limited to the mortgaged premises. There is no personal judgment against Burkham.

The judgment is affirmed, with 3 per cent. damages and costs, but with this instruction, viz., that the Court below so modify its language, as to expressly exempt Burkham from personal liability.